There’s a generation of the junior bar who miss one Magistrates’ Court in particular: Bracknell. In reality Bracknell Magistrates was manned by 3 or 4 London Barristers’ Chambers and a couple of big firms of solicitors. It was a pleasure to appear in.

Yes you’d sit on a train for 50 minutes with no loo or refreshment cart.

Yes if you missed the train you’d be hours late.

Yes you had to have lunch at Burger King or Greggs.

But! It was a wonderful magical place – why? Well, the legal advisors, virtually all had been practitioners at some stage and all were fair. And the Magistrates, consider now that this is in the heart of Berkshire, were diverse in both race and gender. They even had some younger JPs. They thought about cases carefully and gave comprehensive reasons for their decisions. They were polite too…

I’ve only ever had one credibility finding made by a Court against a police officer (this means following the case of Guney that it would be disclosed to the defence in every future case that the police officer has told lies whilst under oath) and that was in Bracknell Magistrates Court.

Bracknell was, in my view, a high quality mark.

But there were other extremes, in X Court you knew you would be acquitted, in Y Court you knew you would be convicted, in Z Court you knew your client was going to prison. You ought to be assessing the outcome of a case on the basis of the evidence not the Court.

Learning from mistakes

The closure of Bracknell was absolutely stupid. The Benches have now been split up and mixed up. The Bar assumed that similar closures in London might even things out across London at least, but now things are less predictable.

In honesty I don’t really go very often anymore, but still, people more junior tell you things, or a pupil will call and ask you a question.

The friction between the Bar and the (Magistrates’) Bench is twofold:

1) The way in which barristers are trained. The problem is this, the average barrister goes off for 6 months to the Old Bailey, Southwark, the Court of Appeal, with their, established and respected master who might be as much as 30 years call. They then crash down to the shop floor in the Magistrates and it is a culture shock. It encourages some baby barristers to be arrogant, it turns some into complete cynics who don’t run trials as they believe Magistrates just convict and some just lose their confidence because of the way in which they’re spoken to and treated.

2) The bizarre. If juries gave their reasons for verdicts then I have no doubt that the doors of the Court of Appeal would never close. But, sometimes, you simply cannot believe what you hear in a Magistrates’ Court:

I give you three personal examples:

a) About 18 months ago, my client didn’t turn up to Court for trial. The Prosecution applied to proceed in absence, I opposed the application. The Bench announced that they proceeded in the Defendant’s absence and found him guilty. This was before they had heard any evidence. Needless to say that conviction didn’t last long.

b) It may harm your defence, if you don’t mention something which you later rely on in Court. 2 years ago, my client was asked a multitude of questions in interview, he answer no comment to a couple of them. When it came to trial, the prosecution didn’t ask the same questions, the Defendant didn’t mention something in trial he hadn’t mentioned previously. The Magistrates came back and found the Defendant guilty. Part of the reason they found him guilty was the Defendant answered no comment to two questions in interview. The Prosecutor and I looked at the legal advisor who didn’t see the problem. I explained the problem, the chair of the Bench was absolutely mortified. Legal advisor told them that his boss had advised that the Defendant would need to appeal to the Crown Court / High Court. The Legal Advisor had read the reasons before they were announced….

c) Credible and consistent. Where this phrase has come from, I do not know. If I find who came up with this phrase I am going to tell them what I think. The worst example of this I had was back toward the start of my career. A youth client was convicted, the reason: ‘The prosecution witnesses have attended this court and been cross-examined so we find them credible and consistent. We did not believe your evidence and so we find you guilty’ – Sorry what?

But I’m not an abolitionist

Actually, if you look at those examples, all three are actually legal errors:

a) Due process/ burden of proof

b) Adverse inference/right to silence

c) Burden and standard of proof / adequacy of reasons.

Magistrates are not legally trained, who is, their legal advisors. If legal advisors are not robust about properly directing Magistrates as to the law then one can hardly blame the Magistrates for the flawed decision.

So what happens if the Crown Court, or the High Court quash a Magistrates’ Court decision on a matter of law? Nothing. The Magistrates are liable for costs if they divert from the Legal Advisor’s advice.

What if the Legal Advisor gives the Magistrates the wrong advice/no advice? Nothing.

Who quality assures Legal Advisors? Other Legal Advisors….

So actually, the first step is to take better quality control of the work done by legal advisors.

And don’t give in to the argument that we should do away with Magistrates because they are not legally trained. There are plenty of cases where I would always opt for Magistrates over a District Judge – why – because a person is much more likely to get a fair trial from his peers,

Unfairness and the many forms thereof

In a lot of courts, familiarity is the first unfairness, Benches have seen and heard particular prosecutors every day for a number of years, there’s of course a relationship there which amounts to a potential unfairness. To ameliorate that, rotate the prosecutors.

The police court? I certainly don’t think every Magistrate has bias towards the police, far from it. However, again, culturally, there were always certain Courts where one could confidently raise police misconduct issues and others where one couldn’t. That’s probably a training and recruitment issue for the Magistracy.

Diversity. Less than 8% of Magistrates are BME. However, more than 8% of Defendants are from ethnic minorities. And, age! The average age of a magistrate is 57. Over 80% are over 50. It’s again a recipe for unfairness.

Familiarity/Training/Diversity: all of those matters, again, are really a matter for the MoJ to sort out.

What does that leave us with…

A very small minority simply misbehave, that’s really something to do with recruitment and proper scrutiny. I have witnessed comments over the years that make ‘predator’ sound minimal.

“found that he demonstrated an inability to take a dispassionate view of a case.”

“was subject to an investigation following the expression of her personal views whilst sentencing in court and subsequently repeated in a media interview. The investigation found the views expressed in court were inappropriate.”

“made inappropriate comments towards fellow magistrates.”

These are just a few examples of investigative findings from the Office for Judicial Complaints in the law few months against Magistrates. Clearly, the legal profession and court staff must be encouraged to take this avenue when Magistrates act improperly. As far as I can tell, the legal professions, nor court staff have never been invited to use the Office for Judicial Complaints at all.

Great expectations

The Magistrates are an ancient institution. And one I’m not keen to get rid of. The JP suffix after their names gives a certain degree of respect. But it doesn’t make the Magistracy as a whole respected.

And the present Government has great expectations for the Magistracy, they want them to do more, they want more Defendants to opt to be tried by them.

Simply put, confidence in the Magistracy isn’t going to be improved by simply policing them better. (Although it must be said, quickly dealing with inappropriate behaviour and encouraging it to be reported is important).

Instead, to meet the great expectations the Government has there needs to be:

(a) A more diverse Bench and less of a ‘local Court for local people’ type of outlook (where possible).

The last six days have seen the Metropolitan Police under attack, from the media, from Parliament and from their own brass. The reason? Racism. Or allegations thereof.

The BBC especially have put their extra special shocked faces on. But, how on earth can there be racism in the Met post the Macpherson report? This is 2012, nobody is racist anymore.

Toss. British society has racist elements. Police officers are recruited from British society. As such, there’s always the risk you’re recruiting a racist. It goes in everything, football, the Arts, on university campuses, in bars at the Bar.

Racism was not fixed over night with Macpherson and it’s stupid to pretend otherwise.

I’ve always imagined that the Prison Service and the British Military were more susceptible to racism than the police for a variety of reasons. But, both of those have accepted that racism was a problem and have taken steps to stamp it out.

If one makes an allegation of racism in a prison or in a military institution they receive specialist investigation. Although I have no doubt there are still failings in both institutions, I think they’re certainly more honest to themselves.

And they have to be, they don’t have the scrutiny of the public. People can’t spot what they’re upto on the streets, or overhear things. The army isn’t on the streets of London and the Prison Service don’t deal with road traffic incidents.

Being a public service which are truly in the public eye, we are to blame for continued police racism. And some of us are more to blame than others.

Defence lawyers

The criminal justice system is one of the biggest forms of scrutiny that the police face. Much more so than the complaints system or the civil/administrative court.

And on the most part it is for the defence to scrutinise what the police have done in a particular case. When I defend, I’m dogged, particularly when there have been avenues of investigation which haven’t been properly investigated. As too will I take points when evidence has obtained in less than proper circumstances.

But like a lot of other briefs, there’s a line of defence which makes me shudder. ‘They were racist.’ There’s been many a client who has said it to me. And once said and once part of the defence it’s my job to follow that instruction.

That doesn’t mean though that it’ll necessarily even be mentioned in Court. Why? Well sometimes it may not even be relevant. Other times we may advise our clients not to raise it.

Why on earth would you not raise a police officer being racist? One problem is the BBC effect. There has been a degree of post-Macpherson social conditioning that racism is a completely shocking thing and never happens, despite the fact is completely contrary to the reality of wider society.

And it requires a lot of bravery to bring racism into a case, for two further reasons:

The Magistrates

Of my Crown Court trials, racism only has ever come into one, and that wasn’t police racism.

Racism is often a Magistrates’ Court type of issue. A police officer was racist to me so I pushed them away from me. I swore at the officer as they used inappropriate words. I restrained the officer as they acted in a way which offended my religion and so on.

But one of the reasons we have to be so careful about ‘racism’ based defences, it because of the forum. I do not know a single black District Judge. It is incredibly rare that there is a black magistrate on a trial bench.

Does it matter? Yes, of course it matters, the point of magistrates is shared experience. If a section of the community is completely under represented then the Magistracy cannot access that element of shared experience. And I’m sorry to say but in London, being exposed to racist police officers is part of the shared experience of many minorities.

So why do we have to advise our clients not to raise a ‘racism’ defence? Because the Magistrates who hear the cases lack experience of the cultural reality of racism and therefore are less likely to believe defences which have a racial aspect.

And you have to think what type of person the Magistracy attracts. Some Magistrates are incredibly fair, in particular, the author of http://magistratesblog.blogspot.co.uk/ Bystander. I am told (as I don’t know who he is) that I came before him a lot as a second six pupil, and if it’s who I think it is, he is incredibly fair indeed, he really took the oath to heart.

But others, some Magistrates are people who want to maintain order in their communities, their proclivity will always be to believe the police. And I’m sorry to say, but Magistrates are still too old, white and middle class (even some who match that description are some of my favourites!).

So defence lawyers can be blamed for police racism.

Magistrates can be blamed for it too.

And so can the draftsman.

Bad character

Within the eyes of the law, being racist is reprehensible behaviour. So if you accuse a police officer of being so, you risk all of your character going in under the bad character provisions.

This means?

If your client has previous convictions and he gets you, his brief, to accuse the cop of being racist, the convictions are likely to go before the magistrates/jury.

And that will always be a killer.

So we can’t blame entirely the police themselves for the racism that remains.

Society still has racist elements.

Defence lawyers will not expose racism as it is not necessarily in their tactical interest.

Until Magistrates are more diverse, racism will not be explored in the Courts. And until bad character rules are reformed, nobody who has been in trouble before can afford to make the accusation.

You can’t entirely blame the Met themselves for racism, when the system is set up in such a way it allows it to thrive.

Two days ago the CPS inspectorate announced that there was a quality gap between the advocacy skills of the CPS lawyers compared to those in private practice. In the Magistrates’ Court one of the areas which needs to be improved is cross examination.

I’m sorry, cross examination? For non-lawyers, cross examination is where one asks questions of the other side’s witnesses. So for your average CPS Mags’ Court prosecutor, asking the Defendant questions.

I’m sorry, but, cross examination, although an art at the higher end of things, is a pretty rudimentary skill in the Magistrates. If there’s a problem there, then there’s real problems.

When I was first on my feet I never thought that I outgunned the local CPS. Things balanced out, yes they were busy and had less preparation time, but I was green and still learning.

Now?

Frightening

I’ve been back in the Magistrates’ Court for two days this week. For two trials. I won both. Not because I wear a wig for a living, not because I went to Oxford, not because I’m sneaky, not because I’m lucky, not because of anything to do with me… (and worse, not necessarily due to the evidence!)

…but with them.

During both trials, the CPS in-house Prosecutor sent texts on their iPhone.

Neither brought a practitioner text into Court.

And neither had any recent authorities at their mental or physical fingertips.

In the first trial a lay bench had to explain the meaning of hearsay to the prosecutor as she continually attempted to adduce it, to the extent that the Chair of the Bench had to stop a witness and bark – ‘no, we’re not allowed to hear it.’

And today, during my half-time submission the announcement from the Prosecutor which left everyone in Court stunned, ‘this isn’t the Crown Court, you don’t have to prove all the elements of the offence.’ The Legal Advisor, stood up and advised the Magistrates immediately that they must ignore what she said, the Magistrates were in shock and much to my pleasant surprise, the Chair of the Bench announced – ‘it’s the same offence here as in the Crown Court, you still have to make us sure, and you have to make us sure of all the elements of the offence – the rules of evidence still apply.’

The first 6 pupil I have had with me to learn about the Magistrates’ Court cannot believe what he’s seeing and asked me if it’s always like this.

No, it’s not always been like this…

The reality is with money being cut the CPS have fewer available staff and have a much smaller budget for bringing in barristers.

The CPS extradition unit is Rolls Royce, all the lawyers are very good and are well resourced. My experience too of the terrorism team and the mass public disorder guys are the same.

But of course extradition is high profile and potentially has diplomatic impact. And, big scale public order offences are heavily featured in the media.

Yet, the reality is for man or woman on the street that they are not going to be involved in that type of case. They are going to have seen a shoplifting, or be a victim in a pub brawl, they will rely on the in-house CPS advocate.

And the reality is? Lawyers who joined the CPS to litigate, not advocate, have been sent out to the Magistrates. The experienced lawyers in the Magistrates’ Court are being promoted into management roles and away from the Courts. Or, those experienced lawyers are being forced into taking their Higher Rights and being made to process high volume hearings in the Crown Court.

And they’re being expected to do more. They’ll soon have to prosecute everything for the UKBA, they’ve already had to take in all the Revenue and Customs Prosecutions.

So, actually, I think they’re being expected to do a lot, too much.

And can they attract the talent? When I was coming to the Bar, the CPS were offering pupillage, it paid more than I would have got at the independent bar, would have given me a pension and better working conditions. Experienced barristers too were being brought in, offered decent salaries and a pension and a better work life balance, but that has ended too.

The solution?

Certainly not throwing more and more abuse at the CPS. And not throwing more cases at them!

1) Give power back to the prosecutor. Barristers with 20 or 30 years experience are no longer in control of cases. The specialist advocate before she makes a decision has to phone the CPS office and ask permission to do things. That advocate commands the fee (which is still, not great) that they do because of their speciality, give them the power back.

2) Get real(istic). Just because a case involves a domestic element, or a racial element does not mean it automatically has to be prosecuted. There’s a strong public interest in prosecuting these offences, but it doesn’t mean there’s strong enough evidence. Far too many cases come to court which have no hope of success.

3) Go it alone. The Government need to butt out of prosecuting as do the police. The DPP is not a member of the cabinet, he is not an MP. He is a civil servant and like other civil servants he ought to be able to enjoy the independence of the civil service. Cut the KPIs. As too, should the police realise they are not instructing the CPS. The opposite. Police officers should not be able to ‘appeal’ the decisions of prosecutors. Officers-in-charge of cases are not lawyers, they do not know better than the CPS, they should not be able to apply pressure for them to take a certain course.

Justice gap

A gap in quality of advocacy causes a risk of a gap in justice. I don’t want to win cases simply because my opponent is a shattered individual who never wanted to be an advocate.

The CPS are not badlawyersfar from it. But they are lawyers who are being expected to do jobs they never wanted to do, or were trained to do. Now, they’ll be prosecuting in higher courts, with new offences they have no experience of.

Do what the private prosecutors do (RSPCA, local authorities etc) focus prosecutions, really review them and properly fund them. Don’t push prosecutions through because it’ll win political points, even if it doesn’t win cases.

Therein was a warning. A warning that there would be problems with the new interpreter system for the criminal courts.

Basically

The old system was the Court kept a register of interpreters. They called them, they booked them, they paid them. Now, money must be saved, so there’s a new central organisation booking interpreters.

The Court sends an email, and, well an interpreter is supposed to appear.

Eh?

I remember once translating for a French defendant in Court. They simply couldn’t get anybody to turn up. It was incredibly rare. Without an interpreter one can quite simply do nothing. You can’t advise, you can’t sort out bail, nothing.

And imagine in extradition cases? I might be able to mime a shoplifting but I sure as hell can’t mime the EU Framework decision on extradition.

Ya what?

So, is the new system working? I’ve been in the Mags twice in the last two weeks. Both times there were lawyers in Court, both times no interpreter had come. On one occassion, the Chair of the Bench was trying to explain bail in what can only be described as comedy Brit-abroad, ME, SPEAK, SLOWLY, LOUDLY, YOU, UNDERSTAND,YES – no, she didn’t understand, but thankfully she got bail

When you think about it, customer loyalty is key to a good practice at the Bar. The most successful barristers are instructed by the same solicitors throughout their careers. Working relationships turn into lifelong friendships.

And for the criminal solicitors, they need that customer loyalty. They need to impress clients. When a pair of handcuffs go on, the hope is that the accused will select a particular firm.

Season ticket to the zoo

Barrister, solicitor, solicitor advocate, no matter what breed of lawyer you are, if you’ve got criminal law as part of your practice then you’ve got to spend some time in the Magistrates’ Court.

I actually don’t mind going back to the Mags’. I’m still a toddler in barrister terms. My weeks are rather odd at the moment. Recently I did an outing in the High Court on Monday, a quick slog in the Mags’ on Tuesday and then a trial in Provincialshire Crown Court to finish the week. It’s knackering but it’s fun.

I quite like the Magistrates’ Court. It is an absolutely crazy place. It doesn’t have the pomp, calm or precision of other Courts, it does have buckets of character.

That, ‘oh shit, what’s your name again’ moment

I was on home turf this morning. One of the Courts where I did some of my first trials. The plan was simple, nip in, quick legal argument, then back to chambers for lunch and an afternoon of drafting.

The reality was of course different.

Walking across the car park, I turned to see two women running towards me.

‘He’s in the van, he’s in the van, we don’t know why he’s here FTD, Mr FTD you will make sure he doesn’t go to the local nick, he’ll get in trouble in there’

‘oh shit, what’s your name again’ I thought to myself. I played along as best as I could, running inside with them. I realised I’d represented her young son on a burglary in the Crown Court.

I get her inside and point her toward a solicitor from the firm who instructed me for him last time.

Nip into Court,

‘oh hi FTD, are you dealing with X’s case?’ Asks the Court Clerk

‘sure am, how did you guess’ I reply

‘You always get instructed in the weird legal cases’ – I smile, yes, yes I do.

Trial has to go before me, so looks like I’d have to wait. In the foyer, youths are trying to get in without passing through the metal detector, security guards are chasing a drunk bloke who keeps running into court. A youth offending team worker is trying to explain to a mother why her son is in the cells.

I take it all in, the witness service manager comes and stands next to me.

‘I hate Youth Court day’ he growls.

Marvellous.

It’s not just me

While I was soaking up the atmosphere (testosterone and stale booze), ‘Favourite Solicitor’ calls me from another Magistrates’ Court. She’s instructed me to defend a chap who has never been in trouble before (one of those private paying jobs as above). She’s at Court to argue about disclosure.

The CPS quite simply haven’t bothered disclosing anything. The CPS prosecutor reckons, ‘in this day and age, you get what you’re given.’

‘Favourite Solicitor’ and I won’t accept that.

‘Favourite Solicitor’ calls back again, CPS Prosecutor has lost it: ‘Look ‘Favourite Solicitor’ , here it is, I’ve got nothing to give you, police have don nothing, we have done nothing, here’s a piece of paper, if you like, I’ll write on it, we have nothing, I’ll sign it, happy?’

Justice in the Magistrates?

Marvellous.

Loose end

The thing about the Magistrates’ Court is solicitors are really overworked. They generally don’t have much time to stop. Especially when they’re duty solicitor. So, when they spy Counsel at a loose end, especially Counsel they know and Counsel who knows the client they pounce.

And so, by the end of the day:

Bail for the lad whose Mother had seen me in the car park. I am ‘wicked sick’ apparently.

Sentence a lad I represented months back.

And just as I was about to leave, ‘do you mind covering a breach of bail’ – sure. A client who I had represented many Saturday mornings when I was a second six pupil.

So I have the repeat customers I described above. Moreover, I have my own Timson clan, a family who always have me as their barrister. I am rather fond as them as people, they’re always lovely toward me. The arrangement with the solicitor is that I come down to Court to trial to look after them. I know and have represented three generations of one family.

Do I kid myself that I can change their situation? No.

It’s nice to be trusted by people time and time again. Be it solicitors or lay clients.

Does it depress me that the same people come back through the system? Sometimes.

I’m a bit like a mechanic. I fix the old banger for people, I’m fond of the car. But I can’t drive it for them, or take it home to my garage.

What I am learning is that good customer service leads to repeat custom.

And that’s my job to show I can fix a defect. I fix the broken engine. I don’t give the car new paint, or a twin exhaust, I can’t offer a trade-in or interest free finance on a new model. Does that depress a mechanic? I doubt it, I imagine they’re happy that they can get the old engine running again.

I still hope that one day I might have the big case which helps change things. But until then, I am simply a mechanic greasing the wheels, and so will you be if you sign up to be part of the criminal justice machinery.

Coppers has become compulsive viewing for anyone who works in the criminal justice system. It is by far the most honest portrayal of policing. And, refreshingly it shows the view of individual police officers without the PR spin of senior ranks.

Tonight’s episode is the first where I haven’t shouted or screamed at the TV.

Why? Because I felt some of the frustration that those officers described. Barristers and solicitors on either side have to deal with ‘community crime’. Often we cannot believe how something has got to Court. Particularly neighbourhood disputes. Harassment. Low level public order offences. Why are we here?

These offences too generate hundreds of pages of paperwork and it would seem hours of police work.

Then, we see as tonight, a neighbourhood dispute where one of the parties refused to engage in mediation. I rolled my eyes. I remember doing a case similar, in a rural Magistrates’ Court. I was paid privately, it cost my client a lot. It cost the tax payer even more. On the second day the Prosecutor had simply had enough. He invited the Magistrates to bind both parties over and they were sent on their way. Told to keep the peace.

PC Porter

Is the police officer who has to spend time trying to solve this dispute. I have a great deal of sympathy. He was there trying to invite the parties into mediation. One party wouldn’t give.

At the same time, the chair of the Magistrates’ Association has been talking to Frances Gibb of the Times about the role of the Magistracy in this century, outside of Court rooms.

An easy solution in my view is this: train the Magistrates to be mediators. Magistrates could directly engage with community members. They can warn individuals what the consequences might be if they continue in their behaviour. And, the cost of training and their deployment would be less than that of deploying police officers or lawyers.

Indeed it could well be an attractive qualification for younger people and bringing them onto the Bench.

Soft touch

There was a slight hint that PC Porter was a little soft. But, when it came to dealing with the Mother and Son on tonight’s episode I think he was bang on. A number of London areas have a zero tolerance policy on domestic violence. The young lad who had hit his mum was an example of domestic violence. It is policy often that arrest is inevitable, despite the wishes of the victim.

PC Porter’s intervention had helped the family. The lad clearly has issues. What would be gained from dumping him into the criminal justice system? This was an example of proportionate, clever policing.

Again, my lawyer readers will have been there when they’ve been instructed to represent a son or daughter alleged to have thumped or threatened a parent. Court often turns into an episode of Trisha. Or, one of the parties does not attend. Time and money are spent in the Courts which often has no real positive outcome.

You’re under arrest Danny

Local alcoholic and drug addict Danny was well known to the police. His ASBO caught him out on each occasion. The local police did genuinely seem to want to help but as their Inspector pointed out they don’t have the training.

Again, ASBOs provide very little protection to the public. Instead, they’re an expensive means of taking problematic people off the streets.

Having worked with individuals who misuse substances before and during my time at the Bar, I think treatment must be rapidly rethought. Some individuals want to change and can be motivated sufficiently to get help. But, some aren’t. Rather than lock them up in the generic prison system, why not think about secure community facilities where they might detox?

Again, expensive, but surely cheaper than police time, court time and prison places.

Muggers, rapists and murderers

PC Porter said, the public want him to deal with the muggers, rapists and murderers of our society. And of course we do. But I’m happy too for him to act as a peace officer. Keeping the peace in these more minor disputes avoids escalation. Escalation to more serious violent offences.

Preventative measures in the community require sometimes unpopular decisions. It means not prosecuting some people. It means talking to people rather than punishing them for doing unpleasant things. It means trying to force some people to act in a way which is good for them.

It is also means capital expenditure. But capital expenditure now will save budgets in future.

If Magistrates are looking for a role in the heart of communities then it could be as mediators.

No need to scream at Coppers tonight as it would seem that some agree with a pragmatic and proportionate approach like me.